Allowed

Benny @ Agusthy Thomas v. M.K. Varghese

Kerala HC14 Feb 2012Crl.Rev.Pet/361/2012

Case brief

AI extract

What is this about?

The High Court dismissed the revision petition against a conviction for cheque dishonour under Section 138 of the Negotiable Instruments Act, confrming the lower appellate court's modified sentence. However, granting the accused four months to pay the fine to prevent execution of the default clause.

What did the court decide?

Petitioner granted four months to pay the fine ordered by the lower appellate court; failure to do so will trigger the default clause.

Benny @ Agusthy Thomas Vs M.K. Varghese — Execution and Attachment | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.BHAVADASAN

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TUESDAY, THE 14TH DAY OF FEBRUARY 2012/25TH MAGHA 1933

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Crl.Rev.Pet.No. 361 of 2012

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.NO./ IN CRA.164/2011 of THE DISTRICT & SESSIONS COURT, KOZHIKODE .NO./ IN ST.201/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURTII,THAMARASSERY

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REVISION PETITIONER(S):

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BENNY @ AGUSTHY THOMAS, S/O.THOMAS THOTTATHIMALI HOUSE MEEMUTTY POST, PULIKKAYAM ,KODANCHERI KOZHIKODE 673 001

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BY ADVS.SRI. NIRMAL. S

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SMT. VEENA HARI

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COMPLAINANT(S):

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1. M.K. VARGHESE S/O.KURIAN MUNDAKKAL HOUSE CHEMBUKKAVU

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2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM 682031

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R2 BY PUBLIC PROSECUTOR SRI. T.R. RAJESH

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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LSN

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P.BHAVADASAN, J.

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---------------------------------------------------Crl.RP No.361 of 2012

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Dated this the 14^th day of February 2012

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Order

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The accused was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act. He was found guilty and was, therefore, convicted and sentenced to undergo simple imprisonment for one month and also to pay an amount of Rs.50,000/as compensation with a default clause of simple imprisonment for two months. In appeal, the appellate court confirmed the conviction but set aside the sentence for imprisonment for one month but ordered to pay a fine of Rs.52,000/- with default clause. It was also directed that if the amount is realised, it shall be given to the complainant as compensation.

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According to the complainant, the accused had borrowed an amount of Rs.40,000/- from him and in order to discharge the said liability, Ext.P1 cheque was

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Crl.RP 361/12 2

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issued to him. On presentation, the cheque bounced for want of sufficient funds in the account of the accused. Statutory notice issued to the accused invoked no response. The amount remained unpaid and therefore, a complaint was filed.

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Cognizance of the offence was taken by the

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trial court and summons was issued to the accused. On appearance of the accused, the particulars of the offence were read out to him, to which, he pleaded not guilty. Evidence consists of the testimony of PW1 and documents marked as Exts.P1 to P6 from the side of the complainant. After close of the evidence, the accused was questioned under Section 313 Cr.P.C. He denied the incriminating circumstances brought out in evidence and maintained that he is innocent. The accused examined Dws1 to 3 and had Exts.D1 and D2 marked.

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The trial court on an appreciation of the evidence, came to the conclusion that the evidence adduced by the accused is not sufficient to establish the

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Crl.RP 361/12 3

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defence set up by him. Accordingly, the conviction and sentence as already mentioned followed. In appeal, the conviction was confirmed by the sentence was modified.

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Much was said about Ext.D1 complaint said to have been filed by the accused, which was, in fact, much after the dishonour of the cheque and receipt of the statutory notice by him. As rightly noticed by the courts below, Ext.D1 complaint can be treated only as a deliberate attempt from the part of the accused to avoid the liability to the complainant. Even though DW3 gave evidence in support of the accused, the court refused to accept his evidence. The accused has no case that the particulars of the cheque were filled up by the complainant. Further, when the statutory notice was served on the accused, if he had a case that he had no liability towards the complainant, he would have immediately responded to that notice. Instead, he chose to remain passive. The findings of the courts below are based on appreciation of evidence in the case and it is not shown that the findings are either

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Crl.RP 361/12 4

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perverse or unwarranted by the evidence on record. Therefore, no interference under the revisional jurisdiction is called for with the findings of the courts below.

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Faced with the above situation, the learned counsel for the revision petitioner prayed for some time to pay the fine amount as ordered by the lower appellate court.

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Considering the facts and circumstances of the case and also taking note of the willingness expressed by the petitioner to pay the amount, it is felt that a breathing time can be granted to the petitioner to pay the fine amount to ward off the default clause.

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In the result, while confirming the conviction and sentence of the petitioner under Section 138 of the Negotiable Instruments Act, as ordered by the lower appellate court, he is granted four months' time from today to pay the fine amount as directed by the lower appellate court, failing which, the default clause as imposed by the lower appellate court will take effect. If the fine amount is

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Crl.RP 361/12

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realised, it shall be paid as compensation to the complainant.

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The revision petition is disposed of as above.

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P.Bhavadasan, Judge

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sta

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Crl.RP 361/12 6

Benny @ Agusthy Thomas v. M.K. Varghese

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Benny @ Agusthy Thomas v. M.K. Varghese

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